Supreme Court: The 3-judge bench of Ranjan Gogoi, CJ and Sanjay Kishan Kaul and KM Joseph, JJ has dismissed Centre’s preliminary objections regarding admissibility of the leaked documents and has held that the documents are admissible. Joseph, J, wrote a separate but concurring judgment.
CJI Gogoi, writing for himself and Kaul, J wrote,
“even assuming that the documents have not been procured in a proper manner should the same be shut out of consideration by the Court?”
On ‘The Hindu’s’ right to publish the documents in question
“the publication of the said documents in ‘The Hindu’ newspaper reminds the Court of the consistent views of this Court upholding the freedom of the press.”
The Court said that no law enacted by Parliament specifically barring or prohibiting the publication of such documents on any of the grounds mentioned in Article 19(2) of the Constitution has been brought to it’s notice. Hence, the right to such publication is well within the constitutional guarantee of freedom of speech.
KM Joseph, J’s in his concurrent opinion noted
“The documents in question have been published in ‘The Hindu’, a national daily as noticed in the order of the learned Chief Justice. It is true that they have not been officially published. The correctness of the contents per se of the documents are not questioned.”
On alleged violation of Sections 3 and 5 of the Official Secrets Act, 1923
The Court noticed that there is no provision in the Official Secrets Act and no such provision in any other statute by which Parliament has vested any power in the executive arm of the government either to restrain publication of documents marked as secret or from placing such documents before a Court of Law which may have been called upon to adjudicate a legal issue concerning the parties.
Insofar as the claim of privilege is concerned, on the very face of it, Section 123 of the Indian Evidence Act, 1872 relates to unpublished public records. Noticing that the three documents have been published in different editions of ‘The Hindu’ newspaper, the Court said,
“the document(s) being in public domain and within the reach and knowledge of the entire citizenry, a practical and common sense approach would lead to the obvious conclusion that it would be a meaningless and an exercise in utter futility for the Court to refrain from reading and considering the said document or from shutting out its evidentiary worth and value.”
On exemption from disclosure under Section 8(2) of the Right to Information Act, 2005
The Court noticed that Section 8(2) of the Right to Information Act contemplates that notwithstanding anything in the Official Secrets Act and the exemptions permissible under subsection (1) of Section 8, a public authority would be justified in allowing access to information, if on proper balancing, public interest in disclosure outweighs the harm sought to be protected. It said,
“When the documents in question are already in the public domain, we do not see how the protection under Section 8(1)(a) of the Act would serve public interest.”
On potential of the case to threaten the security of citizens
The Court rejected the contention and noted the lines from Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225,
“That all Constitutional interpretations have political consequences should not obliterate the fact that the decision has to be arrived at in the calm and dispassionate atmosphere of the court room, that judges in order to give legitimacy to their decision have to keep aloof from the din and controversy of politics and that the fluctuating fortunes of rival political parties can have for them only academic interest. Their primary duty is to uphold the Constitution and the laws without fear or favour and in doing so, they cannot allow any political ideology or economic theory, which may have caught their fancy, to colour the decision.”
[Yashwant Sinha v. CBI, 2019 SCC OnLine SC 517, decided on 10.04.2019]